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In the High Court of the United Republic of Tanzania

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In the High Court of the United Republic of Tanzania IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] AT ARUSHA MISCELLANEOUS CIVIL CAUSE NUMBER 36 OF 2015 IN THE MATTER OF THE NATIONAL ELECTIONS ACT, CAP 343 REVISED EDITIONS OF 2015 AND IN THE MATTER OF THE PETITION FOR THE AVOIDANCE OF THE RESULT OF THE PARLIAMENTARY ELECTION FOR LONGIDO CONSTITUENCY BETWEEN DR. STEPHEN LEMOMO KIRUSWA..............................PETITIONER VERSUS ONESMO KOIMEREK NANGOLE.........................1st RESPONDENT THE HON. ATTORNEY GENERAL........................ 2nd RESPONDENT THE RETURNING OFFICER FOR LONGIDO PARLIAMENTARY CONSTITUENCY.................. 3rd RESPONDENT JUDGMENT 17/06/2016 & 29/06/2016 S. S. M WANG ESI J.: The petitioner herein going by the name of Doctor Stephen Lemomo Kiruswa, and the first respondent one Mr. Onesmo Koimerek Nangole, are two among the four candidates, who contested the Parliamentary seat for the constituency of Longido in Arusha Region, in the general election, which was held in the country on the 25th day of October 2015. While the petitioner was sponsored by Chama Cha Mapinduzi political party commonly known by its acronym "CCM", the first respondent contested through Chama Cha Demokrasia na Maendeleo political party known by its acronym CHADEMA. The other contestants in the race were Julius Parteyie Syokino, who vied through Alliance for Change and Transparency "ACT" political party, and Lucas Yohana Ole Ngiiria, who was sponsored by Civil United Front "CUF" political party. The Returning Officer, who happens to be the third respondent in this petition, did declare the first respondent the winner for the seat, after he had polled 20,076 votes. The scores for the other contestants were as follows that is to say, Dr. Stephen L. Kiruswa - 19,352 votes, Mr. Lucas Y. Ngiiria 307 votes and Julius P. Syokino 253 votes. The petitioner, felt aggrieved by the results and as a result, he has decided to challenge it by petitioning this Court to avoid the election of Mr. Onesmo Keimerek Nangale as Member of Parliament for the constituency of Longido in terms of the provision of section 112 of the Election Petition Act Cap 343. In addition to the declared successful candidate Mr. Onesmo Keimekek Nangale, who has been impleaded the first respondent, the petitioner has as well impleaded the Returning Officer for the Constituency of Longido as the third respondent, while the Honorable Attorney General, has been made the second respondent, in compliance with the requirement of law that is, the provision of Rule 6 (1) of the National (Election Petitions) Rules 2010. The petition was lodged in Court for the first time on the 11th November 2015. Thereafter, it got amended twice, the last one, which is the one under discussion termed as the second amendment, was filed in Court on the 02nd day of February 2016. The gravamen of the petitioner's complaint is contained in paragraphs seven, eight and nine, which have been couched in the following words that is to say; Para seven (7), that during his campaign rallies, the first respondent used indecent language intended to exploit and discrim inate the petitioner. Para eight (8), that, during the election cam paigns held at various m eetings in Longido constituency, the first respondent through his agents or by himself, dissem inated propaganda that, the petitioner was more used to American way o f life and divorced from the Maasai culture and the Sw ahili language and so, he would not be able to serve the M aasai society properly, m atters which tended to exploit the M aasai cultural and social attitudes particularly in view o f the fact that, Longido is a m ulticultural but made up o f people whose m ajority are of Maasai tribe. The particular places, where the propaganda was disseminated by /o r on behalf o f the first respondent have been listed from sub-paragraph (i) to sub-paragraph (xxi). Para nine (9) that, the returning O fficer for Longido did fa il to ensure com pliance w ith the law and fairness. The particulars o f the irregularities and the places where they were occasioned have been indicated in sub- paragraphs (i) to (viii). Additionally, it has been com plained by the petitioner that, vehicles which were owned and/or managed by avid supporters of CHADEMA, were used in the election process. The particulars o f the vehicles and the sta ff involved as w ell as the routes they took in transporting and/or escorting the ballot boxes have been item ized in sub-paragraph ix in item s (a) to (k). And lastly, it has been the contention o f the petitioner in sub-paragraph x that, some Kenyan Nationals, were perm itted to vote for the Parliam entary election in the constituency o f Longido at the polling stations o f Namanga, Kimokouwa and Kamwanga. As a result of the forenamed irregularities, it has been the averment of the petitioner that, the results which were announced by the Returning Officer (third respondent) in the Parliamentary election of Longido constituency for the year 2015, did not reflect the real wishes of the electorate and has therefore, requested this Honorable Court to declare it to have been laden with mismanagement and irregularities and therefore, null and void. Consequently, the relief which the petitioner has asked from this Court is an order for the conduct of by-election, so that the people of Longido, can properly and freely express their choice of the representative they want to have, in the Parliament of the United Republic of Tanzania. He has as well, asked for costs of this petition against all the respondents. In response to the second amended petition by the petitioner, the first respondent has vehemently disputed all the contentions, which have been raised by the petitioner. In his view, the campaign rallies which he did conduct and his political party, were in orderly manner and so was the election, which was peacefully conducted leading to his being elected as the representative of the people of Longido Constituency. This Court has therefore been humbly urged to dismiss the petition with the usual consequences as to costs. In the same vein, in their joint reply to the second amended petition, the second and third respondents have strongly resisted the contentions put forward by the petitioner and have put him under strict proof thereof. It has as well been their joint argument that, all the legal requirements pertaining to the general election held on the 25th October 2015 in the Constituency of Longido, were fully complied with and thereby, making it to have been free and fair. That being the case, the first respondent was correctly declared to be the winner after having polled more votes than other candidates. To that end, they have joined hands with the first respondent, in requesting this Court to confirm the results, which were declared by the Returning Officer (third respondent) by dismissing the petition of the petitioner with the contempt it deserves with costs. During the hearing of the petition, the petitioner had ably been represented by Doctor Masumbuko Lamwai, who was the lead Counsel, being assisted by Messrs Daud Haraka and Edmund Ngemera learned Counsel, while the first respondent had ably been advocated for by Messrs Method Kimomogoro (lead Counsel) and John Materu learned Counsel. On their part, the second and third respondents, initially were represented by Mr. Juma Ramadhani learned Principal State Attorney, who was assisted by Mr. Fortunatus Mhalila learned Senior State Attorney. The force was later reinforced, by introducing the services of two learned Principal State Attorneys that is, Ms Neema Mwanda and Mr. David Kawkwaya assisted by learned Senior State Attorney Mr. Fortunatus Mhalila. In compliance with the requirement stipulated under the provision of rule 20 (1) of the National Elections (Election Petitions) Rules, 2010 as amended by The National Elections (Election Petitions) (Amendment) Rules, 2012, the following issues were formulated and agreed upon by the learned Counsel for the parties of both sides, and endorsed by the Court, to be the issues for deliberation that is, First, whether in the campaign rallies held during the Parliam entary election campaigns for the Constituency of Longido in the year 2015, the first respondent by him self or through his agents did make some statem ents calculated to obtain advantage over the petitioner on the basis of Kisw ahili language and M aasai cultural and social attitudes on the dates, tim e and a t places, named under paragraph 8 o f the petition. Second, whether there were people eligible for voting, who did not vote at the polling stations o f Orpukel, Engosokwan, Loosoito, Naadare, King'una and Sokon, because the polling stations were opened late, by the election presiding Officers. And, if the answer to the second issue above is in the affirm ative, then whether, the consequence thereof, was in the detrim ent o f the petitioner. Third, whether the presiding officers and militiamen stationed at the polling stations o f Ngereyani, Eleng'ata Dapash and Kamwanga, did influence the electorate to vote fo r the candidate sponsored by CHADEMA p o litica l party. Fourth, whether the first respondent did instigate chaos/altercation in the tallying room at Longido tallying center, when the exercise was in progress. Fifth, if the answer in the fourth issue above is in the affirm ative, whether as a result o f the chaos/altercationthe Returning Officer, who happens to be the third respondent, did order the petitioner and his agents as w ell as the other candidates w ith their agents, to get out o f the tallying room. Sixth, whether some o f the figures of the results of the polling stations appearing in form s 21B, when compared to the figures contained in the spreadsheet, which were later transferred in form 24 B are fictitious.
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